Opinion
2011-10-18
Mark Richard PINES, Plaintiff–Respondent,v.Ricardo A. LOPEZ, Defendant–Appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellant.Richard J. Katz, LLP, New York (Jonathan A. Rapport of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellant.Richard J. Katz, LLP, New York (Jonathan A. Rapport of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered September 28, 2010, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing plaintiff's claims for the permanent consequential limitation and significant limitation categories of serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint in its entirety.
Defendant established prima facie entitlement to judgment as a matter of law on plaintiff's claims of permanent and significant limitations. Defendants submitted, inter alia, the affirmed reports of an expert
orthopedist, who, after reviewing plaintiff's medical records and examining him, found no limitations in the range of motion of plaintiff's knees and opined that plaintiff's injuries were the result of severe degenerative arthritis in both knees.
In opposition, plaintiff did not raise a triable issue of fact. He failed to present admissible evidence of contemporaneous range of motion limitations following the accident ( see Batts v. Medical Express Ambulance Corp., 49 A.D.3d 294, 853 N.Y.S.2d 54 [2008] ). The medical records of plaintiff's orthopedic surgeon also documented that plaintiff previously had been diagnosed with degenerative arthritis in his knees and that the eventual need for a total knee replacement had been anticipated for several years prior to the subject accident. Furthermore, plaintiff's medical expert failed to address two prior accidents in which plaintiff had injured his knees, or to “address how plaintiff's current medical problems, in light of [his] past medical history, are causally related to the subject accident” ( Style v. Joseph, 32 A.D.3d 212, 214, 820 N.Y.S.2d 26 [2006]; see Zhijian Yang v. Alston, 73 A.D.3d 562, 563, 903 N.Y.S.2d 4 [2010] ).